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zr,:e:m:.j^:r,:k:s 



OF 



MR 



JUSTICE FIELD 



IN 



THE ELECTOKAL COMMISSION 






ON 



THE FLORIDA CASE, 



On the 7lh of Febrnary, 1877. 









WASHINGTON : 

JOSEPH L. PEARSON, PRINTER. 
1877. 



. F5 



Ill the Electoral Commission, on the 27th day of February, 1877, on 
motion of Mk. Justice Strong, it was — 

Ordered, That the members of the Commission be at liberty to reduce 
to writing the remarks made by them during the consultations of the 
Commission, and cause them to be published in the printed proceedings 
on or before the 15th day of March next. 

The time was subsequently extended to the close of the month. 



BEMARKS OIF 1 

MR. JUSTICE FIELD, 

On the 7th day of February, 1877, 



Mr. President: After the elaborate arguments made 
yesterday by the members of the Commission from the 
Senate and House of Representatives, I cannot hope to 
throw much light on the subject under discussion. I shall, 
therefore, confine myself, in the brief observations I pro- 
pose to make, to a statement of what I deem to be the law 
applicable to the case before us. 

The main question submitted to us, the one to which all 
other inquiries are subordinate, is, whom has the State of 
Florida appointed as electors to cast her, vote for President ■ 
and Vice-President. The electoral act, under which we are 
sitting, makes it our duty to decide " how many and what 
persons were duly appointed electors " in that state. 

The Constitution declares that each state shall appoint 
electors " in such manner as the legislature thereof may 
direct." It fixes the number to be appointed, which is to be 
equal to the whole number of Senators and Representa- 
tives to which the state may be entitled in Congress. It 
declares who shall not be appointed ; that is, no Senator or 
Representative, or person holding an office of trust or profit 
uuder the United States. With the exception of these pro- 



visions as to the number of electors and the ineligibility of 
certain persons, the power of choice on the part of the state 
is unrestricted. The manner of appointment is left entirely 
to its legislature. 

What, then, was the manner of appointment directed by 
the legislature of Florida ? This is manifestly a proper sub- 
ject for our inquiry, for if another and different manner 
from that directed by the legislature has been followed in 
the appointment of persons as electors, such persons are not 
" duly appointed " in the state, and we must so decide. 
Any substantial departure from the manner prescribed must 
necessarily vitiate the whole proceeding. If, for example, 
the appointment of electors should be made by the gov- 
1 ernor of a state, when its legislature had directed that they 
should be chosen by the qualified voters at a general elec- 
tion, the appointment would be clearly invalid and have to 
be rejected. So, too, if the legislature should prescribe that 
the appointment should be made by a majority of the votes 
cast at such election, and the canvassers, or other officers of 
election, should declare as elected those who had received 
only a plurality or a minority of the votes, or the votes 
of a portion only of the state, the declaration would be 
equally invalid as not conforming to the legislative direc- 
tion ; and the appointment of the parties thus declared elec- 
ted could only be treated as a nullity. 

In inquiring whether the manner prescribed by the state 
has been followed, we do not trench upon any authority of 
the state, or question in any respect her absolute right over 
the subject, but, on the contrary, we seek only to give effect 
to her will and ascertain the appointment she has actually 
made. 

What, then, was the manner directed by the legislature 
of Florida? It was by popular election. It was by the 
choice of a majority of the qualified voters of the state. 
"When their votes were cast on the 7th of November, the 
electors were' appointed, and all that remained was to as- 
certain and declare the result. The appointment was then 



completed and could not afterwards be changed. What 
subsequently was required of the officers of election and 
canvassing boards was an authentic declaration of the re- 
sult. For this purpose the votes in each county were to be 
canvassed by certain designated officers of the county 
within a prescribed period after the election, and duplicate 
certificates were to be made and signed by them, contain- 
ing the whole number of votes given for each officer, the 
names of the persons for whom they were given, and the 
number of votes given to each person. A record was to 
be made of the certificate, and one of the duplicates was to 
be forwarded to the secretary of state, and the other to the 
governor. On the thirty-fifth day after the election, or 
sooner, if the returns from the several counties were 
received, the secretary of state, the attorney-general, and 
the comptroller of public accounts, or any two of them, 
together with any other member of the cabinet who mi^ht 
be designated by them, were required to meet at the office 
of the secretary of state, pursuant to notice to be given by 
him, and form a board of state canvassers, and proceed to 
canvass the returns of the election and determine and 
declare w T ho were elected "as shown by such returns."* The 



* The following is the text of the law, being section 4 of the act of 
February 27, 1872: 

" Sec. 4. On the thirty-fifth day after the holding of any general or 
special election for any state officer, member of the legislature, or Repre- 
sentative in Congress, or sooner, if the returns shall have been received 
from the several counties wherein elections shall have been held, the 
secretary of state, attorney-general, and the comptroller of public ac- 
counts, or any two of them, together with any other member of the 
cabinet who may be designated by them, shall meet at the office of the 
secretary of state, pursuant to notice to be given by the secretary of 
state, and form a board of state canvassers, and proceed to canvass the 
returns of said election and determine and declare who shall have been 
elected to any such office or as such member, as shown by such returns. If 
any such returns shall be shown or shall appear to be so irregular, false, 
or fraudulent that the board shall be unable to determine the true vote 
for any such officer or member, they shall so certify, and shall not include 
such return in their determination and declaration ; and the secretary of 



* 



duty of the canvassers under the law of the state was minis- 
terial, involving only the exercise of such judgment as was 
required to determine whether the papers returned were 
genuine, and were executed in conformity with the require- 
ments of the law. Such was the construction given to the 
statute by the supreme court of the state in the proceeding 
against the canvassers taken on the relation of Mr. Drew, 
who was a candidate for governor at the same election at 
which the electors for President and Vice-President were 
chosen, and votes for whom were thrown out by the can- 
vassers upon the same assumed power that votes for the 
Tilden electors w r ere thrown out by them. In giving its 
decision in that case, the supreme court said : 

" The view that the board of state canvassers is a tribu- 
nal having power strictly judicial, such as is involved in the 
determination of the legality of a particular vote or election, 

cannot be sustained. All of the acts which this board 

can do under the statute must be based upon the returns ; 
and while in some cases the officers composing the board 
may, like all ministerial officers of similar character, exclude 
what purports to be a return for irregularity, still, every- 
thing they are authorized to do is limited to what is sanc- 
tioned by authentic and true returns before them. Their 
final act and determination must be such as appears from 
and is shown by the returns from the several counties to be 
correct. They have no general pow r er to issue subpoenas, 
to summon parties, to compel the attendance of witnesses, 
to grant a trial by jury, or to do any act but determine and 
declare who has been elected as shown by the returns. 
They are authorized to enter no judgment, and their power 

state shall preserve and file in his office all such returns, together with 
such other documents and papers as niay have been received by him or 
by said board of canvassers. The said board shall make and sign a cer- 
tificate containing, in words written at full length, the whole number of 
votes given for each office, the number of votes given for each person for 
each office and for member of the legislature, and therein declare the 
result, which certificate shall be recorded in the office of the secretary of 
state in a book to be kept for that purpose : and the secretary of state 
shall cause a certified copy of such certificate to be published once in one 
or more newspapers printed at the seat of government." 



is limited by the express words of the statute, which gives 
them being, to the signing of a certificate containing the 
whole number of votes given for each person for each office, 
and therein declaring the result as shoivn by the returns. 
This certificate thus signed is not a judicial judgment, and 
the determination and declaration which they make is not 
a judicial declaration, that is, a determination of a right 
after notice, according to the general law of the land as to 
the rights of parties, but it is a declaration of a conclusion 
limited and restricted by the letter of the statute. Such 
limited declaration and determination by a board of state 
canvassers has been declared by a large majority of the 
courts to be a ministerial function, power, and duty, as dis- 
tinct from a judicial power and jurisdiction. Indeed, with 
the exception of the courts in Louisiana, and perhaps 
another state, no judicial sanction can be found for the view 
that these officers are judicial in their character, or that they 
have any discretion, either executive, legislative, or judicial, 
which is not bound and fixed by the returns before them. 
The duty to count these returns has been enforced by 
mandamus so repeatedly in the courts of the several states 
of the Union, that the power of the courts in this respect 
has long since ceased to be an open question." 

The only clause of the statute which would seem to in- 
vest the canvassers with something more than mere minis- 
terial authority, is the one which provides that, " if any such 
returns shall be shown or shall appear to be so irregular, 
false, or fraudulent, that the board shall be unable to deter- 
mine the true vote for any officer or member, they shall so 
certify, and shall not include such return in their determi- 
nation and declaration." Great stress was placed by coun- 
sel, in the argument before the Commission, and by Mr. 
Commissioner Morton, yesterday, upon this clause; as 
though it gave unlimited discretion and power to the 
canvassers to exclude, in their count, such votes as they 
might judge from any cause to have been illegally or 
irregularly cast. But it is evident from the language 
used and its context, that the clause never contemplated the 
exercise of any such undefined and arbitrary power over 
the returns, but only intended to authorize the exclusion 



8 

from the count of a return, whenever from evidence, intrin- 
sic or extrinsic, of its irregularity, falsity, or fraudulent char- 
acter, the canvassers were unable to determine the actual 
vote cast for any officer. It gave no authority to reject 
the votes actually given, except when the canvassers were 
unable to ascertain for whom they were intended, much 
less to enter upon any judicial investigation into the legality 
of the votes. In considering this clause the supreme court 
of the state, in the case of Drew, already cited, held that 
the words true vote meant the vote actually cast as distinct 
from the legal vote ; and that this followed from the clear 
general duty of the canvassers to ascertain and certify the 
" votes given " for each person for each office ; and because, 
to determine whether a vote cast ivas a legal vote was beyond the 
power of the board. 

We have, then, a decision of the Supreme Court of Florida 
giving an authoritative construction to the act under which 
the electors for President and Vice-President were chosen, 
to the effect that the powers of the canvassers under the 
act were purely ministerial, and that their whole duty con- 
sisted, whenever they were enabled to determine the actual 
vote given for any officer, in simply computing arithmeti- 
cally the number of votes cast, as shown by the returns, 
and declaring the result by a certificate of the fact over their 
signatures. Whatever beyond this was done by them was 
in excess of their authority and void. And I hardly need 
add, in this presence, that whatever was done by them in ex- 
cess of their authority was not done in any manner directed 
by the legislature of the state. 

The construction given to a statute of a state by its 
supreme cqurt is, as we all know, considered as part of the 
statute itself, as much so as if embodied in its very text. 
Such is the language of the Supreme Court of the United 
States in all its decisions. Thus, in Leffingwell vs. "Warren, 
reported in 2d Black, the court said : " The construction 
given to a statute of a state by the highest judicial tribunal 
of such state is regarded as a part of the. statute and is as 



binding upon the courts of the Uuited States as the text," 
And again, in Christy vs. Pridgeon, reported in the 4th of 
Wallace, the court said : " The interpretation within the 
jurisdiction of one state becomes a part of the law of that 
state, as much so as if incorporated into the body of it by 
the legislature." 

Having thus briefly stated the requirements of the law 
of Florida, providing for the appointment of electors, and 
thus shown the rummer of appointment directed by its 
legislature, I will proceed to state the course actually pur- 
sued by the canvassers, from which it will appear whether 
there was any departure by them, and if any, how great a 
departure, from the direction given. 

The returns sent from the several counties to the state 
canvassers all disclosed for whom the votes were cast. It 
is not pretended that any of them appeared, or was shown 
to be either so irregular, false, or fraudulent, that the can- 
vassers were unable to determine the actual vote oiven for 
any officer. The pretence is, that some of the votes re- 
turned were illegally or irregularly s;iven, not that there was 
any doubt for wdiom they were intended. Under these cir- 
cumstances, the duty of the canvassers, according to the de- 
cision of the supreme court, and according to the express lan- 
guage of the statute, was simply to add together the votes and 
declare, under their certificate, the result as shown by the re- 
turns. In so doing they would have carried out the direction 
of the legislature. Being added together, the returns would 
have shown that the Tilden electors were chosen. But the 
canvassers, instead of discharging the simple ministerial duty 
devolved upon them, undertook to exercise judicial functions 
and pass upon the legality of votes cast at various precincts 
in different counties, hearing evidence and counter-evidence 
upon the subject, consisting partly of oral testimony, but 
principally of ex-parte affidavits, and in numerous instances, 
upon one pretence or another, throwing out votes given 
for the Tilden electors, thereby changing the result. In 
this way a majority of the canvassers came to the con- 
2 



10 

elusion that the Hayes electors were chosen. In no other 
way could such a result have been reached. 

i\ T ow, it matters not, for the purpose of my argument, 
whether, in taking these proceedings and in exercising ju- 
dicial functions, the canvassers were actuated by honest or 
by corrupt motives ; whether their conduct was the result 
of a mistaken conception of their powers, or, as is alleged, 
of a conspiracy to defraud the state of her choice. In any 
view that may be taken, it is clear that in deciding upon the 
legality of votes embraced in the returns, and in rejecting 
votes from their count on the ground of their asserted ille- 
gality or upon any other ground, they exceeded their juris- 
diction, and their action in that particular was without any 
validity whatever. 

A result declared, after the returns were altered by the 
elimination of votes embraced therein, was not a result 
obtained in the manner directed by the legislature of the 
state. It was not a result which gave the offices to those 
who had received the highest number of votes, as required 
by the law of the state, but to those who had received only 
a minority of the votes. The whole proceeding, instead of 
being in accordance with, was in direct contravention of 
the will of the legislature. Surely it would not be pre- 
tended that if a portion of the returns had been feloniously 
abstracted from the office of the. secretary of state, a can- 
vass founded upon the returns remaining would show an 
appointment of electors in the manner prescribed by the 
legislature of the state. A felonious abstraction and an 
unauthorized exclusion of votes are in legal effect the same 
thing. 

By the act of Congress the Electoral Colleges were re-, 
quired to meet on the first Wednesday in December, which 
was the sixth of the month. The canvassers commenced 
their labors on the 27th of ^November, the returns from the 
several counties being at that time all received, but did not 
complete the count until the morning of the day appointed 
for the meeting of the Electoral College. Two of them 



11 

then certified to the election of the Hayes electors; and 
the governor issued to them a certificate of their election. 
One of the canvassers, the attorney-general, certified that 
by the authentic returns of the votes in the several 
counties on file in the office of the secretary of state, 
and seen by him as a member of the board, the Tilden 
electors were chosen. The two sets of electors met on 
the same day, and at the same time, and in the same 
building, and both sets voted, and transmitted their re- 
spective certificates of their proceedings in duplicate to 
the President of the Senate at Washington, one copy by a 
special messenger and one by mail. Which of these two 
sets of electors w^&T duly appointed by the state ? Both 
were not thus appointed. After the statement I have 
made of the character of the returns, and the manner in 
which they were altered, there can be no reasonable doubt 
that the Tilden electors were thus appointed. They re- 
ceived a majority of the votes cast as shown by the returns, 
and the law of the state declares that parties receiving 
the highest number of votes for any office shall be elected 
to such office. 

Mr. President, I have spoken of the matters appearing 
by the returns, and of the proceedings of the canvassers, as 
facts in proof before us. I have done so, because the evi- 
dence contained in the documents transmitted to us with 
the papers received and opened by the President of the 
Senate, if we are allowed to look into them, establishes 
beyond controversy the facts which I have stated. Why, 
then, should we not consider that evidence and act upon it ? 
We are answered that the certificate of the governor is the 
only evidence which the Commission can receive of the ap- 
pointment of the electors. The Constitution does not pre- 
scribe the evidence which shall be received of the appoint- 
ment. That only provides for the voting of the electors, and 
the transmission by them of a list of the persons voted for, to 
the seat of government, directed to the President of the Sen- 
ate. Congress has, therefore, enacted that the governor shall 



12 

issue a certified list of the electors to them before the time 
fixed for their meeting. The Language of the act is that " It 
shall be the duty of the executive of each state to cause three 
lists of the names of the electors of such state to be made 
and certified, and to be delivered to the electors of such state 
on or before the day on which they are required by the 
previous section to meet." — -(Revised Statutes, sec. 136.) 

There is nothing' in this act which declares that the cer- 
tificate thus issued shall be conclusive of the appointment. 
It does not say that the evidence thus furnished is indispens- 
able, or that other evidence of the appointment may not be 
received. Its only object was simply to provide convenient 
evidence of the appointment for the consideration of the 
two Houses of Congress when called upon to count the 
votes. It was not its purpose to control their judgment in 
deciding between different sets of papers purporting to con- 
tain the votes of the state. A compliance with the act is 
not obligatory upon the executive of the state. He is not 
in that respect subject to the control of Congress. He 
could not be compelled to give the certificate, nor could lie 
be subject to any punishment for refusal to act in the mat- 
ter. And certainly when Congress can furnish no means 
to control the action of a state officer, it cannot render his 
action either indispensable or conclusive of the rights of the 
state. Instances may be readily imagined where, from ac- 
cident, disability, or sickness of the governor, the certi- 
fied lists could not be obtained, or be obtained and de- 
livered in time, or if obtained, might be lost or destroyed 
before delivery. In such cases would there be no remedy I 
Would the state in such cases lose its vote ? Surely no one 
will seriously contend for such a result. Suppose, further, 
that the governor, by mistake or fraud, should deliver cer- 
tified lists in favor of persons not appointed electors, for 
instance, to persons who had not received a majority of the 
votes cast for those officers, (the persons having such majority 
of votes being eligible to the office under the Constitution,) 
would it he pretended that the will of the state should be 



18 

thwarted through the force of his certificate 1 I feel confi- 
dent thai no lawyer in th<- country would hold that the truth 
could not be shown in such case against the face of the cer- 
tificate; and I will never believe in the possibility of this 
Commission so holding until I Bee its decision to that effect. 
The truth is a certificate is only pri evidence of 

the fact certified, [ndeed, I venture to assert, without fear 
of successful contradiction, that in the absence of positive 
law declaring its effect to be otherwise, a certificate of any 
officer to a fact is never held conclusive on any question 
between third parties; it is always open to rebuttal. There 
are, indeed, cases where a party who has been induced to act 
upon the certificate of a fact may insist that tin- truth of the 
certificate shall not be denied to his injury, but those cases 

ied upon the doctrine of estoppel, which has no appli- 
cation here. The fact here to be ascertained is. who have 
hern duly appointed electors of the State of Florida, not 
who have the certificates of appointment. It is the flec- 
tion and not the certificate which gives the right to the 
office. The certificate being only evidence, can be over- 
come by any evidence which is in it- nature superior. And 
this is equally true of the certificate issued under the law of 
the state as of the certificate issued under the act o\' Con- 
3. And ir is equally true of the certificate of the hoard 
3. Those officers exercised mere ministerial 
functions; they possessed no judicial power; their deter- 
mination had none of the characteristics or conclusiveness 
of a judicial proceeding; it has been bo decided by the su- 
preme court of the state. And yet, in the opinion of the 
distinguished Commissioner from Indiana. (Senator Mor- 

and some of the other commissioners from the Senate 
and House appear to concur with him, the determination 
of those canvassers, as expressed by their certificate, is 
more Bacred and binding than the judgment of the highest 
court of the land incapable of successful attack on any 

ground whatever. 

I put, yesterday, to these gentlemen, this question : 



14 

Supposing the canvassers had made a mistake in addi- 
tion in footing up the returns, a mistake that changed 
the result of the election, and acting upon the supposed 
correctness of the addition, they had issued a certificate 
to persons as electors who were not in fact chosen, and 
such persons had met and voted for President and Yice- 
President and transmitted the certificate of their votes to 
Washington; and afterwards, before the vote was counted 
by the two Houses of Congress, the mistake was discovered, — 
was there no remedy ? The gentlemen answered, that there 
was none ; that whatever mistakes of the kind may have 
been committed, must be corrected before the vote was 
cast by the electors, or they could not be corrected at all 
If this be sound doctrine, then it follows that by a clerical 
mistake in arithmetical computation, a person may be 
placed in the Chief Magistracy of the nation against the 
will of the people, and the two Houses of Congress are 
powerless to prevent the wrong. 

But the gentlemen do not stop here. I put the fur- 
ther question to them : Supposing the canvassers were 
bribed to alter the returns, and thus change the result, or 
they had entered into a conspiracy to commit a fraud 
of this kind, and in pursuance of the bribery or conspiracy 
they did in fact tamper with and alter the returns, and de- 
clare as elected persons not chosen by the voters, and such 
persons had voted and transmitted their vote to the President 
of the Senate, but before the vote was counted the fraud was 
detected and exposed, — was there no remedy ? The gentle- 
men answered, as before, that there was none ; that what- 
ever fraud may have existed must be proceeded against and 
its success defeated before the electors voted ; that what- 
ever related to their action was then a closed book. If this 
be sound doctrine, it is the only instance in the world where 
fraud becomes enshrined and sanctified behind a certificate 
of its authors. It is elementary knowledge that fraud viti- 
ates all proceedings, even the most solemn ; that no form 
of words, no amount of ceremony, and no solemnity of pro- 



15 

cedure can shield it from exposure and protect its structure 
from assault and destruction. The doctrine asserted here 
would not be applied to uphold the pettiest business transac- 
tion, and I can never believe that the Commission will give 
to it any greater weight in a transaction affecting the Chief 
Magistracy of the nation. 

But the gentlemen do not stop here. I put the fur- 
ther-question to them: Supposing the canvassers were 
coerced by physical force, by pistols presented at their 
heads, to certify to the election of persons not chosen by 
the people, and the persons thus declared elected cast the 
vote of the state, — was there no remedy ? — and the answer 
was the same as that given before. For any wrong, mis- 
take, fraud, or coercion in the action of the canvassers, say 
these gentlemen, the remedy must be applied before the 
electors have voted. The work of the electors is done 
when they have acted, and there is no power under exist- 
ing law by which the wrong can be subsequently righted. 

The canvass of the votes in Florida was not completed 
until the morning of the day of the meeting of the electoral 
college, and within a few hours afterwards its vote was cast. 
To have corrected any mistake or fraud during these hours, 
by any proceeding known to the law, would have been im- 
possible. The position of these gentlemen is, therefore, that 
there is no remedy, however great the mistake or crime com- 
mitted. If this be sound doctrine, if the representatives in 
Congress of forty-two millions of people possess no power 
to protect the country from the installation of a Chief 
Magistrate through mistake, fraud, or force, we are the only 
^1§a&peo{ffe in the world held in hopeless bondage at the 
mercy of political jugglers and tricksters. 

This doctrine, which seems to me to be as unsound in 
law as it is shocking in morals, is supported upon the no- 
tion that if we are permitted to look behind the certificate 
of the governor, and of the canvassing board upon which 
that certificate is founded, we shall open the door to an in- 



16 

vestigation which may not be brought to a close before the 
4th of March. The argument is that as the new President is 
to be installed on that day, and the votes of the electoral 
colleges are to be counted in February, all inquiry as to 
the truth of that certificate is forbidden, because it may be 
impracticable to carry the inquiry to a termination in time 
for the installation. This position was taken by counsel 
before the Commission, and presented in every possible 
form, and was repeated yesterday by Commissioners Hoar 
and Garfield, and dwelt upon by them as though it were 
conclusive of the question. The argument amounts only 
to this, that the difficulty of exposing in time a mistake or 
fraud of the canvassing board is a sufficient reason for not 
attempting the exposure at all, and for quietly submitting 
to the consequent perpetration of a monstrous wrong. 

It is true that the machinery for the election of President, 
devised by the framers of the 12th amendment to the Con- 
stitution, contemplates the induction of the successful can- 
didate into office on the 4th of March, and that the office 
shall not on that day be either vacant or disputed. I ad- 
mit, therefore, to the fullest extent claimed by gentlemen, 
that no proceedings can be permitted which will post- 
pone the counting of the votes, so as to prevent a decla- 
ration within that period of the person elected, or a refer- 
ence of the election to the House of Representatives. But 
this limitation of time, so far from being a reason for sub- 
mitting to a mistake or to a fraud, is a reason for immediate 
action to correct the one and expose the other. Whatever 
is done to overthrow the prima facie evidence presented by 
the certificate of the governor, must be commenced, carried 
forward, and completed, so that the result of the proceed- 
ing can be considered by the two Houses of Congress when 
the certificates are opened in their presence and the votes are 
counted. The countervailing evidence must be presented 
in some authentic form, like the judgment of a competent 
tribunal, or the legislative declaration of a state, or the 
finding of an appropriate committee approved by the House 



17 

appointing it; and then it will constitute a basis for the 
action of the Houses without delaying their proceedings. 
If, for example, the certificate of the governor were forged, 
or designated as electors persons for whom no votes were 
cast, the fact, if it were desired to ask the action of the 
two Houses upon it in counting the vote, should be pre- 
sented in such a conclusive form as to be the subject of 
consideration as a fact found. If an investigation is then 
required to establish the fact alleged, I admit that the 
proceeding cannot be had, except by permission of the tioo 
Houses, by reason of the delay it would occasion. The two 
Houses cannot be required to stop the count to take Testi- 
mony and investigate the truth of mere allegations ; but if 
the fact of forgery or falsity has already been found by com- 
petent authority, and the finding is laid before the two 
Houses, the finding would not only be a proper subject of 
consideration by them, but it would be their manifest duty 
to act upon the finding, in order that the nation might not 
be defrauded in its choice of a Chief Magistrate. 

In the view which I take of this subject there would be no 
great delay in the counting of the electoral votes, if Congress 
were permitted to look behind the action of the governor 
or of the canvassing board ; for the facts to be brought to 
the attention of the two Houses would have to be presented 
in the maimer indicated before they could be received and 
acted upon, unless the two Houses should consent that tes- 
timony be taken at the time. If the fact alleged could be 
readily established, without seriously delaying the count, it 
is not probable that testimony upon the subject would be 
refused. For example, testimony would hardly be refused 
as to the ineli^ibilitv of an elector, or the constitution of a 
canvassing board, or the condition of a state, as under mili- 
tary rule at the time of the election. But where the fact al- 
leged is one of conflicting evidence, and is not susceptible of 
proof within reasonable limits, then, I think, the fact must 
be presented properly authenticated, as I have stated. 

Evidence in this form, impeaching the correctness of the 
3 



18 

ificate of the governor and canvassing board, can be 
furnished by the state or by either House of Congress; by 

Mate, which is interested that it shall not he defrauded 
of its vote in the election ; and by either House of Congress, 
which is interested that the forty-two millions of people 
composing the nation shall not he deprived of the Presi- 
dent of their choice. 

In this case, the State of Florida has furnished evidence 
in an authentic form, and conclusive in its character, that 
the Hayes electors were never appointed, and that the cer- 
tificate of the governor and of the canvassing board in that 
set is false, and that the Tilclen electors were duly ap- 
pointed. It has furnished the declaration of its legislature 
in a statute affirming such to be the fact, and it has fur- 
nished a judicial determination of its courts to the same 
effect. 

Soon after the canvass of the state board was closed, 
and its certificate of the result was tiled, Mr. Drew, who had 
been a candidate for the office of governor at the same 
election, against Stearns, the incumbent, and had been de- 
clared defeated by the action of the canvassers in excluding 
votes for him, instituted proceedings by mandamus in the 
supreme court of the state to compel the canvassers to 
count the votes given, as shown by the returns. In his 
petition for. the writ he averred that, according to the re- 
turns received at the office of the secretary of state, and on 
file there, a majority of the voles for the office of governor 
were cast for him; and charged againsl the canvassers the 
same disregard Of the law of the stall' which is alleged 
against them in the count for the electors. Indeed, their 
action affected equally the candidates lor governor and lor 
electors. The canvassers appeared to the writ, and proceed- 
ings were conducted to a judgment on the merits. r i ne 
supreme courl adjudged that the canvassers had no author- 
ity to exclude the votes, by which exclusion alone Stearns 
ha 1 been declared elected, and directed them to restore 
the trotes. Jn obedience to this judgment they restored the 



19 

excluded votes, and c »r Drew, who went 

into office and has ever since been the accepted gov< 
o( th li wag the exclusion of the same \ 

• hat enabled the can) to declare the 1 1 

shosen. In deciding this case the court 
ruction I ktute under which the canvassers acted, 

and don from which I have already quoted. 

As -""ii as ii was known thai the canvassers had certified 
to the election of the Eaves electors, the Tilden ele 
filed an information in the nature of a quo warranto against 
them in one of the circuit courts of the state, to determine 
• ■ their respective claims to the office ■■ 
This proc< commenced upon the day on 

h the canvass was completed, and process Wi 
on the Haw- electors before they had cast their votes. The 
circuit couii hud jurisdiction of the proceeding by the con- 
stitution of the state, the eighth Bection of which provides 
in terms that the rir.-u.it court and the judges thereof shall 
rae writ- «>f quo warranto. In the informa- 
tion the Tilden electors alleged that they were lawfully 

s, and that the Bayes electors 
were not thus but were usurpers. The Hayes elec- 

. id. first upon demurrer, and 

yards upon an investigation of th fcheir right to 

act as electors wae I. .Ynd it was adjudged that 

(he ; never appointed, and were never 

entitled to assume and -w I e functions of that o 

and were usurpers; but that the Tilden electors were duly 

appointed at the election on the 7th of November, and 'were 

entitled on the 6th of December to receive certificates of 

ion, and on thai day an I since to es srcise the 

. ;id perform the duties of thai office. It matters 

thai this judgment was nor reached until after 

roted ; ir was an adjudication by a 
com] >urt upon the validity of their title as 

at the time they assumed to cast th of the 3 

That judgment remains in full force; the appeal from it 



20 

neither suspends its operation nor affects its validity. It is 
certainly entitled to great, if not conclusive, weight upon 
the subject before us, especially when considered in con- 
nection with the action of the legislature of the state. 
That action seems to me to be conclusive of the case. 
After the supreme court in the Drew proceeding had 
given a construction to the election law, and decided that 
the canvassers had disregarded its plain provisions, exer- 
cised judicial functions which they never possessed, and 
unlawfully rejected votes, the legislature took steps to have 
their count corrected with respect to the electors, as it had 
been with respect to the governor. And on the 17th of 
January last it passed — 

" An act to provide for a canvass according to the laws of the State 
of Florida, as interpreted by the supreme court, of the votes for electors 
of President and Vice-President cast at the election held November 7, 

1876." 

This act required that the secretary of state, attorney-gen- 
eral, and the comptroller of public accounts, or any two of 
them, together with any other member of the cabinet who 
might be designated by them, should meet forthwith at the 
office of the secretary, pursuant to a notice from him, and 
form a board of state canvassers, and proceed to canvass the 
returns of election of electors of President and Vice-President 
held on the 7th of November, and determine and declare 
who were elected and appointed electors at that election, as 
shown by the returns on file. The act directed the can- 
vassers to follow the construction of the law given by the 
supreme court defining the powers and duties of state can- 
vassers. It directed that their certificate of the result should 
be recorded in the office of the secretary of state, and a 
copy be published in one or more newspapers printed at the 
seat of government. The canvassers accordingly met and 
made the canvass directed, and certified that the Tilden 
electors, namiug them, had received a majority of the votes 
and were duly elected. 



21 

Subsequent to this, and on the 26th of January, the legis- 
lature passed another act in relation to the Tildeu electors. 
That act recited, among other things, that — 

"Whereas the board of state canvassers constituted under the act ap- 
proved February 27, 1872, did interpret the laws of this state defining the 
powers and duties of the said board in such manner as to give them power 
to exclude certain regular returns, and did in fact under such interpreta- 
tion exclude certain of such regular returns, which said interpretation 
has been adjudged by the supreme court to be erroneous and illegal : 

''And whereas the late governor, Marcellus L. Stearns, by reason of said 
illegal action and erroneous and illegal canvass of the said board of state 
canvassers, did erroneously cause to be made and certified lists of the 
names of electors of this state, containing the names of said Charles H. 
Pearce, Frederick C. Humphries, William H. Holden, and Thomas Long, 
[the Hayes electors,] and did deliver such lists to said persons, when 
in fact the said persons had not received the highest number of votes, and, 
on a canvass conducted according to the rules prescribed and adjudged as 
legal by the supreme court, were not appointed as electors or entitled to 
receive such lists from the governor, but Kobert Bullock, Kobert B. Hilton, 
Wilkinson Call, and James E. W. Yonge [the Tildeu electors] were 
duly appointed electors, and were entitled to have their names compose 
the lists made and certified by the governor, and to have such lists de- 
livered to them : 

" Now, therefore, the people of the State of Florida, represented in senate and 
assembly, do enaet, v £e. 

The act then proceeded to declare that the Tilden electors, 
naming them, were on the 7th of November duly chosen 
and appointed by and on behalf of the State of Florida in 
such manner as the legislature thereof had directed, and 
were from that day entitled to exercise all the powers and 
duties of the office of electors, and had full power and 
authority on the 6th of December, 1876, to vote as such 
electors for President and Vice-President, and to certify 
and transmit their votes as provided by law. The statute 
then ratified, confirmed, and declared as valid, to all in- 
tents and purposes, the acts of such electors. It also au- 
thorized and directed the governor to make and certify in 
due form and under the seal of the state, three lists of the 
names of the electors, and to transmit the same, with an 
authentic copy of the act, to the President of the Senate, 
and declared that such lists and certificate should be as 



22 

valid and effectual to authenticate in behalf of the state the 
appointment of such electors by the state as if they had been 
made and delivered on or before the 6th of December, 
1876, and bad been transmitted immediately thereafter, and 
that the lists and certificates containing* the names of the 
Hayes electors were illegal and void. The act further au- 
thorized and directed the governor to cause three other lists 
of the names of the Tilden electors to be made and cer- 
tified and forthwith delivered to them, and required those 
electors to meet at the capitol of the state and to make and 
sign three additional certificates of the votes given by them 
on the 6th of December, to each of which should be an- 
nexed one of the lists of the electors furnished by the 
governor, and that one of the certificates should be trans- 
mitted by messenger, and one by mail, to the President of 
the Senate, and the third delivered to the judge of the dis- 
trict, as required by law. 

Pursuant to this act the governor of the state made and 
certified three lists of the Tilden electors and delivered the 
sdi ne to them, and the said electors assembled and certified 
that they had met on the 6th day of December at the capi- 
tol and oivcn their votes as electors for {'resident and Vice- 
President by distinct ballots, the votes for President being 
for Mr. Tilden, and the votes for Vice-President being for 
Mi\ Hendricks, and signed three certificates of their action, 
which were forwarded as required by law. These certifi- 
cates were accompanied by the certified lists of the gov- 
ernor, by a certified copy of the two acts of the state, and by a 
certified copy of the returns on file in the office of the secre- 
tary of slate, with a tabulated statement annexed showing 
the result of the votes. The third certificate, which is be- 
fore ns. embraces all these proceedings. 

ilerc. then, We Qave the highest possible evidence of the 

action <>f the State of Florida. The twosets of electors both 
conformed to i'\r\-y requirement of the law in their pro- 
ceedings. One set. the I [ayes electors, have the certificate of 
Q-ov. Stearns of their election, based upon a certificate of 



23 

the canvassing board, which in its nature is mere 'prima 
facie evidence ; the other set, the Tilden electors, have an ad- 
judication of a state court of competent jurisdiction, that 
they alone were the legally appointed electors. They have 
the authoritative declaration of the legislature of the state 
that they alone were entitled to act as electors, and vote for 
President on the 6th of December ; and they have a cer- 
tificate of Gov. Drew, based upon a re-canvass of the votes, 
that they were duly appointed. And accompanying this 
evidence they have a certified copy of the returns, showing 
that they received a majority of the votes cast at the election. 

Under these circumstances can it be possible that there is 
any serious question as to which of the two sets of electors 
was duly appointed f As the legislature was alone authorized 
to determine the manner in which the electors should be 
appointed, it could furnish in its own way evidence of their 
acts as agents of the state, whatever may be the power of 
Congress for its convenience in requiring a certificate of 
the governor. "Were this transaction one that involved 
merely questions of property, instead of a matter of great 
public and political interest, I do not think there is a lawyer 
on this Commission, who could hesitate a moment as to 
the conclusive character of the evidence in favor of the 
Tilden electors. 

In addition to this action of the state Congress has moved 
in the matter, and very properly so ; for the entire people 
are interested in the election of their Chief Magistrate. 'No 
other officer can exercise so great an influence for good or 
for evil upon the whole country. He is not only the com- 
mander-in-chief of our army and navy, but he is the execu- 
tor of our laws, the organ of intercourse with foreign 
nations, the bestower of offices of honor and trust, and is 
charged with the duty of maintaining and defending the 
Constitution. Of all the obligations resting upon the rep- 
resentatives of the people none is greater than that of seeing 
that no one takes that high office with a defective and 
tainted title. Acting upon this obligation the House of 



24 

Representatives early in the session, when it was rainored 
that irregular and fraudulent proceedings had characterized 
the election in some of the states, and in Florida among 
others, appointed committees of investigation to ascertain 
the facts and report who in truth had been appointed elec- 
tors by those states. One of those committe -- -ded 
to Florida and took there a large amount of testimony on 
the subject, which it has returned to the House with its 
conclusions as to the result. This committee has reported 
that the Tilden electors were duly appointed, concurring 
in that respect with the action of the state tribunals and the 
stare legislature. Their report and its conclusions, if adopted 
by the House, would undoubtedly have a controlling influ- 
ence upon its action in counting the vote of the state if 
this Commission had not been created, and for that reason 
thev should be received, and it' not accepted as final, at 
least be considered by 

We are invested with all the powers of the two Houses 
of Congress to ascertain and decide what persons were 
£; duly appointed " electors of Florida. By the law which 

* The committee presented to the House their report on the 31st of 
January, in which they declared that the evidence was perfectly conclusive 
that the State of Florida had cast her vote for the Tilden electors, and they 
closed with recommending the passage of the following resolution : 

JRcsolved. That at the election held on Xoveinber 7. A. I>. 1876, in the 
of Florida. Wilkinson Call. J. E. Yonge. E. B. Hilton, and Eobert 
Bullock were fairly and duly chosen as presidential electors, and that 
this is shown by the face of the returns and fully substantiated by the 
evidence of the actual votes cast : and that the said electors having, on 
the nrst Wednesday of December. A. D. 1-76. cast their votes for Samuel 
J. Tilden for President and for Thomas A. Hendricks for Vice-President, 
they are the legal votes of the State of Florida and must be comr 
such. 

This resolution was subsequently adopted by the House by a vote of 
142 yeas to S - 2 nays. 

The sub-comniittee on Privileges and Elections in the Senate also made 
an investigation and report on the Florida case, which was adverse in its 
conclusions to those of the House, but the report was never adopted by 
the- Senate. 



25 

has governed legislative bodies from their earliest existence, 
matters upon which they may be called to act can be inves- 
tigated by committees appointed for that purpose. And 
either House may receive the testimony taken by its com- 
mittee and proceed upon that, or accept the finding of its 
committee as its judgment and. act upon that as conclusive. 
And not until now has it ever been questioned that the 
power of each House to take testimony in that way was not 
as extensive as the subjects upon which it could act. One 
of the gentlemen on this Commission (Mr. Edmunds) in- 
troduced into the Senate during the present session reso- 
lutions for the appointment of committees to inquire into 
the matters which we are now considering, and Senators 
Morton and Frelinghuysen voted for them. One of the' 
resolutions authorized the committees to inquire, among 
other things, " whether the appointment of electors, or those 
claiming to be such, in any of the states, has been made 
by force, fraud, or other means otherwise than in conform- 
ity with the Constitution and laws of the United States and 
the laws of the respective states ;" and in compliance with 
the resolutions the committees have passed weeks in their 
investigations. It certainly provokes surprise and comment 
to hear these gentlemen now deny that either House of Con- 
gress has any power to go behind the certificate of the gov- 
ernor, and that of the canvassing board of the state, and to 
inquire into the matters for which those committees were 
appointed. 

It is said that the Hayes electors were de facto officers, 
and, therefore, that their action is to be deemed valid until 
they were adjudged usurpers. But they were no more de 
facto officers than the Tilden electors. Both sets of electors 
acted at the same time and in the same building. The doc- 
trine that the validity of the acts of de facto officers cannot be 
collaterally assailed, and that they are binding until the officers 
are ousted, is usually applied where there is a continuing 
office, and then only on grounds of public policy. Private in- 
dividuals are not called upon, and in most cases are not per- 
4 



2>3 

mined, to inquire into the title of persons clothed with, the 
insignia of public office and in apparent possession of its 
powers and functions. They are required, for the due or- 
der and peace of society, to respect the acts of such offio 
and yield obedience to their authority, until in some reg- 
ular mode provided by law their title is determined and 
they are ousted. As a consequence of the respect and 
obedience thus given, private individuals can claim, in all 
that concerns themselves and the public, for the acts of 
such officers, the same efficacy as though the officers were 
ricrhtfullv clothed with authoritv. The doctrine mav be 
applied even to a single act of an officer, where the office 
is a continuing one. but it may be doubted whether it is 
applicable to the case of a p arson simply charged with the 
performance of a single act. In such performance it 
would seem that the person could properly be regarded 
only as the official agent of the state, and if. therefore, he 
was without authority, his acts would be void. If the 
doctrine is ever applicable to such a case, it cannot be ap- 
plied, where the act performed has not accomplished its pur- 
pose before the want of right in the officer to do the act in 
question is determined. Xone of the reasons upon which 
the doctrine rests, of policy, convenience, or protection to 
private parties, has any application to a case of this kind. 
It does not seem, therefore, to me that there is any force in 
the position. 

Nor is there anything in the language used in the petition 
in the quo warranto case which can affect the status of the 
Tilden electors, as is supposed by one of the counsel on the 
other side (Mr. Matthews; . Of the two sets of electors each 
claimed to be lawfully entitled to act, and for the purpose 
of having a judicial determination of the question in contro- 
versy, one set brought the writ. Any allegations they 
may have made cannot alter their right or title ; that de- 
pended upon the vote of the people, and no consent or lan- 
guage of theirs could change their position to the state, or 
to the United States. 



27 

Mr. President, I desire that this Commission should suc- 
ceed and give by its judgment peace to the country. But 
such a res alt can only be attained by disposing of the ques- 
tions submitted to us on their merits. It cannot be attained 
by a resort to- technical subtleties and ingenious devices to 
avoid looking at the evidence. It is our duty to ascertain 
if possible the truth, and decide who were in fact duly ap- 
pointed electors in Florida, not merely who had received 
certificates of such appointment. That state has spoken 
to us through her courts, through her legislature, and 
through her executive, and has told us in no ambiguous 
terms what was her will and whom she had appointed to 
express it. If we shut our ears to her utterances, and clos- 
ing our eyes to the evidence decide this case upon the mere 
inspection of the certificates of the governor and can- 
vassing board, we shall abdicate our powers, defeat the de- 
mands of justice, and disappoint the just expectations of the 
people. The country may submit to the result, but it will 
never cease to regard our action as unjust in itself, and 
as calculated to, sap the foundations of public morality. 



After the Electoral Commission had decided to exclude all testimony 
respecting the vote of Florida, except that furnished by the papers opened 
by the President of the Senate, the following memorial from the legisla- 
ture of the state was presented to the Houses of Congress : 

Concurrent resolution embodying a memorial to Congress relative to the 
counting of the electoral vote. 

Resolved by the Assembly, (the Senate concurring,) That Hon. Charles W. 
Jones be requested to present the following memorial to the Senate of 
the United States, and that Hon. Jesse J. Finley be requested to present 
the same to the House of Eepresentatives of the United States : 

The people of the State of Florida, represented in the senate and as- 
sembly, memorializing the honorable Senate and House of Eepresenta- 
tives of the United States, respectfully represent that the final counting 
of the four electoral votes of Florida for Eutherford B. Hayes and William 
B. Wheeler, when the said votes had been actually and honestly cast for 
Samuel J. Tilden and Thomas A. Hendricks, is a grievance of such mag- 
nitude to your memorialists that in their view this appeal is not only 



£> 



28 

fully warranted, but cogeutly demanded by the voice of duty. Your 
memorialists hold themselves to be justified in treating as established 
and unquestionable the feet that the said electoral votes were diverted 
from their true course and employed to defeat the end which they had 
been set forth to accomplish, because the knowledge of this feet has been 
communicated to your honorable bodies by solemn acts of all depart- 
ments of the government of Florida. While it is true that the executive 
branch of said government had previously averred the contrary, it has 
been made known to your honorable bodies, and is rapidly becoming 
known throughout the civilized world, that according to the highest 
judicial authority of the state that averment is false. 

Your memorialists may be forced to admit that there is no remedy for 
the specific wrong of^which they herein complain, but they implore the 
early and earnest attention of your honorable bodies to the vices or de- 
fects in the Constitution or laws of the United States by reason of which 
such a wrong became possible. If it is true that under the Federal 
Constitution an exigency ma}' arise in which one fraudulent act per- 
formed, or one mistake committed by a majority of a canvassing board, 
must necessarily defeat the will of the American people and determine 
the occupancy of the highest position open to human ambition, your 
memoralists fear that the great instrument which they have been accus- 
tomed to regard as the unapproachable masterpiece of statesmanship will 
become an object of derision and scorn. 

Your memorialists venture to express the hope that the wisdom which 
characterizes your honorable bodies will be speedily applied to the de\ is- 
ing of some expedient whereby it shall be made certain that tie nation 
will never again prove utterly impotent to protect itself against the ille- 
gal action of a board of canvassers. And your memorialists will ever 
pray, &e. 

Adopted by the assembly. February 12, 1877. 

Adopted by the senate, February 13, 1877. 

State of Flokida. 

Office Secretary of State, 88." 
I, William I). Bloxham, Secretary of state, do hereby certify thai the 
foregoing is a correct transcript of the original now on tile in this 

en under my hand and the great seal of the State of Florida, at 
Tallahassee, the capital, this 26th day of February, A. i>. L877. 
[SEAL.] W. 1). BLOXHAM, 

Set retary of >■ 






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